Responding To Mental Illness in Your Workforce: Following the Law

In Part 1 of this series, Leading a Culture Change, we talked about specific steps you can take to create a workplace that responds to mental illness in a compassionate, fair and realistic way. Here in Part 2, let’s also talk about how to respond in a way that adheres to the spirit and word of the law.

Employment Law vs. Disability Law

As you know, all employment law is designed to protect employers, as well as employees. However, people with disabilities have long felt that employment law left them out in the cold.

After many years of advocacy, Congress passed the Americans with Disabilities Act (ADA) in 1990 to protect all people with physical and behavioral health disabilities. While the passage of the law was significant, its implementation has been difficult and has resulted in hundreds of lawsuits brought against employers for not just stigma, but outright discrimination. These lawsuits have been extremely destructive to all parties and have resulted in executives paying exorbitant amounts of money to protect their organizations.

All of this could be avoided if everyone understands the law, which was designed to protect both the employee and his or her employer. Much effort went into ensuring that employees have fair warning if performance becomes an issue and that employers have recourse if the employee needs more flexibility than a company can realistically provide.

The ADA in Reality

Many managers and supervisors do not understand the law, and some people have false information about what it does and does not mandate. A clear and accurate understanding of the ADA will help you, your leadership and your management understand how to respond to mental illness in your workforce. It will also help your employees who manage mental illnesses, as well as others who wonder why some people seem to get special treatment when, in reality, they’re simply exercising their legal rights.

Education about the law — and how it plays out in real life — is critical to creating the fair and legal workplace you want. The best source is www.ada.gov, hosted by the United States Department of Justice and written in language that non-lawyers can understand.

The Choice to Disclose and the Right to Accommodations

The crux of the law is the opportunity for people to disclose their diagnosis, which is their personal choice, and to request accommodations. These are things their employer can provide that would enable them to fulfill the fundamental duties of the job, as carefully stated in their job descriptions.

Many people with mental illnesses choose never to disclose their diagnoses and maintain their performance without ever requesting an accommodation. Others believe that, without an accommodation, such as more flexible hours or a quieter workspace, they won’t be able to perform. The law protects these people, but only if they directly and formally disclose their diagnosis to management. The supervisor is bound by the law to validate the need for the accommodation by getting the employee to provide a note from a mental health professional qualified to determine the severity of the employee’s symptoms.

Privacy and Confidentiality

All employees of any workplace are obligated by many laws, including the ADA, to keep all information about a person’s health confidential and private. Although many people feel free to talk about their colleagues’ health concerns, in reality, such discussions are illegal. As the executive, you’re obligated to get the message to all staff that private health information (PHI) concerns all issues. And, of course, for people with mental illnesses, complying with these laws is even more critical because of the stigma that is still part of our society.

Realistic and Reasonable Accommodations

Once the illness has been disclosed, you must ensure that your organization follows the specific regulations required by the law. Case reviews of suits involving the ADA show that the majority of accommodations requested by people with mental illnesses are what the law refers to as “reasonable,” meaning the organization will not suffer financially if it accommodates a person’s need.

For example, research shows that most accommodations involve employers’ willingness to adjust work schedules. Psychiatrists prescribe mental health drugs to be taken at specific times of the day to be effective, but they concur with their patients that most of these drugs cause drowsiness, making it difficult for people to get to work early in the morning. Because these accommodations don’t result in significant loss of productivity, most employers now understand that flexibility with work hours is a reasonable, realistic, fair and legal solution.

If you readily offer flexible solutions to the needs of employees with physical health conditions, you must do the same for people with mental illnesses. Without creating a culture where it’s safe to have a mental illness, you lose opportunities to create and lead a workplace that promotes health and wellness. At the same time, you lose talented and valuable employees who want to contribute to your mission and success.

The law anticipates these potential losses and helps you avoid them. Learning it and following it is a key step in responding to mental illness in the workplace you lead.

Responding To Mental Illness in Your Workforce: Following the Law

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Carol A. Kivler, MS, CSP

Carol A. Kivler of Lawrence, N.J., is the founder of Courageous Recovery, a division of Kivler Communications, designed to raise awareness, remove the stigma of mental illness, and instill hope in those who live with it. Through Courageous Recovery, Kivler’s goal is to change the way society and the medical profession views people living with mental illness. Carol presents keynotes and workshops at conferences and events as well as all types of Continuing Education Programs: Grand Rounds, staff professional development, CEU/CME courses.

Carol is a consumer in recovery, who has successfully overcome four major bouts of clinical depression (TRD) with the use of ECT. She is a highly respected professional speaker (CSP), author, executive coach, corporate trainer (CMT) and owner of Kivler Communications. Carol has an M.S. in Human Resource Education and previously worked as a college professor. Her new book, "Will I Ever Be the Same Again? Transforming the Face of ECT (Shock Therapy)" was published last June and is a finalist for two book awards. Her website is http://carolkivler.com/.